New OATH Court System For Certain Summons is not Exactly What it Claims

By: Don A. Murray, Esq.

The NYC Administration and the press are praising the new system of sending many summons matters formerly addressed in Criminal Court to be addressed as civil matters in OATH hearings. At first blush, of course, this sounds like a fantastic idea. Various low level administrative offenses such as urinating in public, trespassing in parks after hours, and others will no longer be sent to the big bad Criminal Court and it will be far better for everyone involved.

Except when you read the fine print, and if you truly understand the process of the "Criminal Court" summons courts, you begin to wonder whether this system pitched as kinder and gentler is really cleverly designed to extract more money from the very people they claim to be helping, and designed to hurt those people quite severely if they don't pay up.

Criminal Court Had Discretion

One difference between the Criminal Court system and the OATH system is that the Criminal Court system involves negotiations and discretion that are utterly unavailable in the OATH system.

In the old Criminal Court pink summons system, some of the trivial offenses, such as urinating in public and violations of park rules could be charged as misdemeanor criminal offenses. While this is absurd, judges in the pink summons courtrooms had the discretion to negotiate summonses, which they virtually always did. That means that although you might be charged with the "criminal" version of urinating in public, it would virtually always be possible to negotiate a settlement with the judge in which the judge would offer to settle the matter with a trivial non-criminal infraction and a small fine. And it was often also possible to negotiate the particular infraction used to be one that was not related to the embarrassing offense of urinating in public.

Therefore, under both systems, the ultimate outcome was a trivial infraction and a fine. Therefore, the City simply moved the location where that result occurs to the OATH courts.

Furthermore, the judges in Criminal Court pink summons courtrooms have the discretion to adjust the fines as appropriate in an individual instance. Although judges tended, for example, to impose a consistent fine across the board on urinating in public cases, it was always possible to make the case to the judge for a lesser fine than normal, and in some circumstances, the judge might well agree.

The OATH courts are fixed to a rigid set of fines for each specific offense. There appears to be no room for negotiation. There appears no room for discretion.

Higher Fines Equal More Money for the City

Furthermore, to my eye, the fixed fines listed are more, and in some cases, substantially more than what was routinely available for the same offenses in the Criminal Court pink summons courts. Typically in the Criminal Court pink summons courts, urinating in public could be resolved with a $50 fine. (I negotiated a $50 fine on a urinating in public summons in Criminal Court last week (June, 2017). According to the OATH Court schedule, the fine is now going to be $75, which represents a 50% increase in the amount of the fine historically available for the same offense.

Another interesting fine is the fine listed for "Unauthorized presence in park when closed to the public". In the OATH Court schedule, this will carry a $50 fine.

Let us contrast this with what could be routinely negotiated in the big bad Criminal Court. In the big bad Criminal Court, park after hours cases are routinely capable of settlement with a procedure (available only in Criminal Court) called Adjournment in Contemplation of Dismissal (ACD). If a Criminal Court judge gives you an ACD that means you plead guilty to nothing, you admit no wrongdoing of any kind, you pay ZERO dollars in fines, you need do ZERO community service, and the case is dismissed automatically in six months. In theory, if you are rearrested or given a new summons during those six months the matter can be restored to the calendar and prosecuted. But essentially the big bad Criminal Court will typically be willing to give you a free chance to dismiss your case. The ACD procedure is designed specifically to address first time alleged offenders of low level offenses and, under the right circumstances, give them the benefit of the doubt without penalty.

Criminal Court has a heart. OATH does not. OATH does not believe in the benefit of the doubt. OATH believes in strict adherence to a schedule of fines.

Therefore, in the case of park after hours, the situation for people people now in the OATH courts is substantively worse.

And generally, having had a look at the schedule of fines, I can say that the fines appear to be higher than what I have been able to negotiate in Criminal Court, and in many cases will be "infinitely" higher in the sense that under some circumstances ACD resolutions can be negotiated in which there would be no fine and the case would be dismissed.

Also there is much ado made of the availability of community service in some circumstances in lieu of a fine. But there is a catch. In order to apply to perform community service, you have to go in person to your hearing date. So much easier to take care of it otherwise. So much easier to just pay...

Aggressive Enforcement of Fines

Another alarming payload contained in the new procedures apparently meant to be kinder and gentler is the following statement from the OATH website regarding what happens to people who fail to pay their fines:

If you do not respond, you may be found automatically responsible and you may owe larger penalties. If you do not pay any imposed penalties, you may lose your ability to keep or get a City license, permit or registration. The City might also take further legal action against you.

Whoa. Historically, when a Criminal Court judge imposed a fine for a pink summons case, and the person fined did not pay it, that has meant that a court entered a civil judgment against the person, but nothing more. But NOW, not only are the fines higher, but if you don't pay them, the City is coming after your City license, permit or registration or the City will take "further legal action against you."

Doesn't sound so kind and gentle to me.

Sounds like big bad Criminal Court might not have been so big or bad after all. Sounds like this new system might have had more to do with finding ways to collect more money and more efficiently from the same people.

Burden of Proof Makes Conviction Easier in OATH Courts

For people who wanted their day in Court, being in Criminal Court triggered the burden of proof of Beyond a Reasonable Doubt. This is a serious burden that gives someone who wants to contest the accusation something of a fighting chance. By sending summons matters to the OATH courts as civil matters, the burden is thereby lowered to a "preponderance of the evidence" standard that is the hallmark of a civil case. The hearing officer will only have to be convinced the that the respondent violated the law by this lower standard, amounting to a feeling of being 51% certain. Such a burden is far easier to meet than burden of beyond a reasonable doubt. The burden being so low also renders the decision by the hearing officer all but unappealable in the real world. Therefore, again, for those people who would have wanted to have their cases heard in Court, they would have a greater likelihood of success in Criminal Court than they will in the OATH courts. Of course, the consequences of loss in Criminal Court could be more severe if the underlying charge is a misdemeanor. But if the underlying charge is a non-criminal infraction, as are most of the offenses in pink summons court, the advantage is far greater at trial in Criminal Court.

War on Lawyers

And what is further interesting about this is how the new system is built around making it easy for people "to do it themselves". Translation: "You don't need one of those pesky lawyers. Call us. Email us. Video conference us. Mail it in. No lawyer necessary. Of course you "can" get a lawyer involved, but the OATH website clearly encourages people to handle these matters themselves.

Do I need a lawyer at my hearing?

You are not required to have a lawyer, but you may bring one at your own expense. Respondents may also represent themselves, bring someone to help them, or hire a non-lawyer representative.

— http://www1.nyc.gov/site/oath/hearings/hearings-faq.page

Instead, convince people with little or no experience in the law, evidence, making relevant legal arguments, and presenting facts of a case in an organized and cogent way to just come on down and "present your case". It will inevitably end up being a self fulfilling prophecy that people will lose these hearings not necessarily because they don't have the facts on their side but because they don't have sufficient experience or understanding of the law to present those facts to a sufficient level of proof to be successful. Yes, going to law school and practicing law actually yields specific skills and understanding about legal things that are not going to be absorbed by reading some articles on the web or the self help FAQ's on the OATH website.